3 Issues in Local Zoning for Group Homes

• Library: Group Homes: Strategies for Effective and Defensible Planning and Regulation (ABA) (2014 Ed.)

Generally speaking, courts review local zoning decisions deferentially. When a local legislative body is making a legislative decision—that is, enacting a zoning ordinance with broad coverage over the jurisdiction in question—the decision by the local body is generally upheld unless it was arbitrary or capricious, or without some basic rationale.¹ However, when cases are brought under the Fair Housing Amendments Act (FHAA), courts are far less deferential in their review of local zoning decisions. This difference results in an inherent conflict between the authority of state and local governments to regulate land use—a power that the Constitution has reserved to the states—and federal authority to enforce the FHAA. Some commentators have criticized the FHAA's broad reach, in essence arguing that the act's provisions overriding local zoning are an unconstitutional expansion of federal authority,² but these arguments have generally fallen flat.

The lack of judicial deference to local legislative bodies in the fair housing arena is evident in the burden-shifting approach adopted by a number of courts reviewing FHAA claims against local zoning authorities. The plaintiff in an FHAA case has the initial burden of establishing a prima facie case of housing discrimination under the statute. Such a prima facie case may be shown on a theory of discriminatory intent or disparate impact, or the plaintiff may show that the local zoning accommodation requested by the person with a disability or his representative is reasonable under the requirements of 42 U.S.C. § 3604(f)(3).³ Once the plaintiff has made out a case of discrimination against a person with a disability or a group, the burden then shifts to the local government to demonstrate a legitimate, bona fide governmental interest and to show that no alternative would serve that interest with less discriminatory effect.⁴ Most courts have explicitly rejected a "compelling interest" test—which would require that the government demonstrate important regulatory interests and narrowly tailored regulations to further that interest—to overcome a claim that the governmental action had a discriminatory effect or that the government had violated the law in failing to offer a reasonable accommodation.⁵ However, the burden placed on local government defendants remains high under the FHAA analysis. Once the government has shown a legitimate, bona fide governmental interest and no less-discriminatory alternative, the burden shifts back to the plaintiff to establish that the governmental interest provided by the defendant is a pretext for discrimination.⁶

Zoning ordinances can run afoul of the FHAA in a number of ways. A common ploy is for the local zoning authority to exclude group homes by classifying them as boarding houses, medical facilities, schools, or commercial businesses, which typically enables their exclusion from residential areas and limits them to commercial or industrial zones.⁷ Other ways in which zoning ordinances may violate fair housing laws include having restrictive definitions of "family" that exclude groups of people unrelated by blood, marriage, or adoption from residing in single- or multifamily residential zones.⁸ Definitions of "group home" or equivalent facilities in the community may also have references to the disabilities of particular residents that facially discriminate on the basis of those disabilities.⁹

Three legal theories are available to a plaintiff in an FHAA action involving group homes and local zoning regulations, and thus there are generally three broad ways that local governments can be held liable for FHAA violations. The plaintiff may allege that (1) the local government engaged in intentional discrimination against people with disabilities, (2) the zoning regulation in question had a disparate impact—or discriminatory effect—on people with disabilities, or (3) the local government failed to make a reasonable accommodation for a person or group based on a disability.¹⁰ These three theories are discussed in detail in this chapter.

Intentional Discrimination

The claim of intentional discrimination is often broken down into two separate but closely related claims: facial discrimination and discriminatory intent. If the ordinance or action by the local government discriminates against people with disabilities on its face—for example, if the zoning ordinance clearly states that group homes for people with disabilities are permitted only in industrial or commercial zoning districts—it is reviewed as a facially discriminatory law. Then again, if the ordinance or action is outwardly neutral but motivated by a discriminatory animus, it is reviewed as a discriminatory intent issue.

Facial Discrimination

A plaintiff challenging a facially discriminatory local zoning code is highly likely to prevail in an FHAA challenge. As the Ninth Circuit aptly noted, "A facially discriminatory policy is one which on its face applies less favorably to a protected group."¹¹ A simple example of a facially discriminatory code that would be likely to violate the act would include a law that requires special—and more restrictive—procedures, such as special use or conditional-use permits of group homes for people with cognitive or physical disabilities. This rule would be facially discriminatory because the zoning ordinance specifically refers to people with disabilities and presumably subjects people with disabilities to less-favorable treatment than people without disabilities.

With facially discriminatory laws, the federal appellate courts apply a uniform standard that places the burden of showing the local ordinance's validity squarely on the local government. Although the plaintiff must first make out a prima facie case of facial discrimination by demonstrating that the protected group in question has been subjected to an explicitly discriminatory treatment,¹² it is up to the government to demonstrate that the challenged provision's less-favorable application to the protected class is permissible under Title VIII, because the discrimination is objectively legitimate.¹³ Most of the federal appellate courts have found that a facially discriminatory code is objectively legitimate if the restriction in question benefits the protected class, or if the restriction responds to legitimate safety concerns raised by the affected individuals, so long as those safety concerns are not based on stereotypes.¹⁴ Only one federal circuit court, the Eighth Circuit, follows a "rational basis"—like test under the FHAA,¹⁵ requiring that the government simply demonstrate that the regulation in question is rationally related to the furtherance of a legitimate governmental interest. Once the government entity has successfully articulated a legitimate reason for its facially discriminatory policy, the plaintiff has the opportunity to show that the local government intentionally discriminated on a prohibited ground—disability, for example—or that the reason offered by the government for the discrimination is a mere pretext for improper discrimination.¹⁶

Therefore, a violation of the FHAA will be found where a local regulation discriminates against people with disabilities on its face and serves no legitimate governmental purpose.¹⁷ A number of cases highlight examples of facial discrimination that served no legitimate purpose. Spacing or dispersal requirements for group homes—a common feature of local ordinances and some state statutes, which are typically justified by findings that group home residents in the community benefit when group homes are dispersed among different neighborhoods—have often been struck down by courts. For example, in Upper Southampton Township, Pennsylvania, a 1,000-foot spacing requirement for group homes was found facially discriminatory where group homes would be excluded from operating in many parts of the community due to the spacing requirement, and the spacing requirement effectively capped the number of people with disabilities who could live in the community.¹⁸ A Michigan state statute imposing a dispersal requirement was also struck down on the grounds that it discriminated against people with disabilities.¹⁹ Local governments in spacing cases have frequently offered the justification that the spacing requirement encourages people with disabilities to become integrated into the community. Courts, however, often find that this justification is barred by the FHAA. The FHAA does not require or allow integrating measures that would effectively have a discriminatory impact on members of a protected class.²⁰ Numerous other cases have found similarly.²¹

While some courts have found spacing requirements to violate the FHAA, other courts have found such requirements properly justified and acceptable. A Minnesota statute and City of Saint Paul ordinance, both of which required a quarter-mile distance between group homes unless the city granted a special use permit, were upheld against a challenge from a mental illness treatment center operator.²² The reviewing court found that the state had shown a legitimate interest in the facially disparate treatment of group homes because the dispersal requirement furthered the state's interest in deinstitutionalization of people with disabilities and encouraged the location of residential living centers among the broader community.²³ Moreover, the court found that the FHAA did not preempt states from creating licensing standards for group homes for people with cognitive impairments.²⁴ Some other courts that have found dispersal requirements in zoning ordinances facially discriminatory have insinuated a willingness to accept those requirements, as long as the local government is willing to make a reasonable accommodation by variance or special use permit when requested.²⁵ Despite the disfavor that spacing requirements have found with many judges, a number of states still impose these requirements by statute.²⁶ Local zoning...